The Right to be Forgotten

Very few people wouldn’t have an embarrassing photo hiding away. Or have made a silly comment that they wish would be forgotten. Or perhaps a minor criminal matter that is long past but keeps bobbing up, hindering you even though it is long since past.

This is the issue debated during a panel discussion at the IAPPANZ Summit held in Sydney on 17 November 2014.

The panel, comprised of journalist and publisher Richard Ackland, Peter Bartlett from Minter Ellison Lawyers, David Vaile from the Faculty of Law at UNSW and Anne Flahvin, the media and communications counsel for Policy Australia, debated the issue of whether we have a fundamental right to have information about ourselves edited from the Internet.

It all starts in Spain

Flahvin opened the citing the case of a Mr Gonzales in Spain. He had a social security debt about 15 years before and it was listed by newspapers in their archives. As archives came online, that information became more widely available and he found it had an ongoing impact on his life even though it was resolved.

In 2009 he asked the newspaper to delete the information from their online archive. They refused.

In 2010, he asked Google to disable links to the information. Google refused.

He then went to the Spanish data protection agency seeking a remedy. Their view was the newspaper formed part of the public record and couldn’t direct the newspaper to remove the information. But, surprisingly in Flahven's view, they directed Google to remove links to the content. Google defended their right to link to the information and the case went to court.

In May this year, the court held up that EU citizens have a fundamental right arising from the EU Charter of Fundamental Rights to demand that a search engine disable links to any content that contains personal information about them that has become inadequate, irrelevant, or no longer relevant.

While many privacy advocates welcomed the decision, it was also subject to widespread criticism as it puts search engines into the role of censors. When asked why the British government didn’t intervene, the response from the House of Commons committee was that they were surprised by the decision.

Bartlett's view of the decision was that it's a "time to reflect, to reflect on just what a terrible decision this was". He postulated that in Gonzales' case, the question of whether the data passed the EUs test of relevance was dubious. Gonzales past financial history, in Bartlett's view could be relevant to banks assessing him for financing of loans.

"I think it's wrong for anyone to basically have the right to rewrite history," he added.

One of the challenges in this discussion is dealing with archived information regarding allegations that are subsequently proved false in court. There are numerous cases where the initial allegations and court case are big news but subsequent exoneration is not as widely reported. In such cases, Bartlett believes that original story ought to stand but that a note added making it obvious that the allegations did not stand.

Others on the panel questioned the practicality of that approach.

Ackland pointed out that the decision, which he described as "peculiarly European", was quite unusual. Although Google has been compelled to remove the links from the indexes to the article - a task that has resulted in 100 Google employees doing the same for in excess of 200,000 similar requests by other EU citizens - the newspaper retains the story in its own archives.

In fact, it's possible for the content to be accessed using a non-local version of Google or going directly to the new site.

In contrast to views of the other panellists, Vaile described the decision as "a storm in a teacup".

"In Australia, we've had the right to be forgotten, entrenched in law, uncontroversial, straightforward, no fuss, no mess for about 30 years," he said. "The Spent Convictions legislation is designed entirely to deal with exactly this situation".

Bartlett added that of the hundreds of thousands of requests Google has received to remove content from its indexes, no one is asserting that any of the information being removed is false.

Ackland added that another issue is where, if the courts tale a view that privacy has legal standing then it's possible that information that may be in the public interest may be supressed under privacy concerns over personal information being shared.

Although, this might be resolved through legal mechanisms, the time from when an injunction is raised to when the journalists could win the right to publish could result in the public interest being thwarted.

This article is brought to you by Enex TestLab, content directors for CSO Australia.

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